Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 1 of 29 PageID #: 227
UNITED STATES DISTRICT COURT FOR THE D'ISTRTCT OF RHODE ISLAND
GAIL, JOHN D. and John F. CORVELLO, et al, Plaintiffs, V. . C.A. NO. 05-2211
NEW ENGLAND GAS COMPANY, INC.,
Defendant;
KEVIN BURNS, et al.
Plaintiffs, V. C.A. NO. 05-274T
SOUTHERN UNION COMPANY dba FALL RIVER GAS AND NEW ENGLAND GAS Defendants;
COLLEEN BIGELQW, et al. Plaintiffs, V. C.A. NO. 05-370T
NEW ENGLAND GAS COMPANY, formerly known as FALL RIVER GAS COMPANY, an unincorporated division of SOUTHERN UNION COMPANY, Defendants;
SHEILA REIS, et al.
Plaintiffs, v. C.A. NO. 05-522T
SOUTHERN UNION COMPANY dha FALL RIVER GAS AND NEW ENGLAND GAS Defendants. Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 2 of 29 PageID #: 228
ERNEST C. TORRES, Chief Judge. The plaintiffs in these four cases reside on and/or own property in Tiverton, mode Island. They brought these actions against New England Gas Company ("NE Gas"), an unincorporated division of Southern Union Company ("Southern Union"), alleging that, approximately fifty years ago, hazardous substances that were the by-product .of a coal gasification process utilized by Fall
River Gas Company ( "FRGC" ) , NE Gas' s predecessor, were deposited as fill on the plaintiffsf property.
The multi-count complaints assert claims for negligence, gross negligence, violation of the Rhode Island Hazardous Waste
Management Act ("HWMA"), R.I. Gen. Laws § 23-19.1-22, strict liability, infliction of emotional distress, private nuisance, and public nuisance. The relief sought includes monetary damages for the plaintiffs' loss of use and enjoyment of their properties, for diminution of the properties' value and for emotional distress as well as punitive damages, costs and attorneys' fees. Some of the plaintiffs also are requesting declaratory and/or injunctive relief.
NE Gas and Southern Union have moved, pursuant to Fed. R. Civ.
P. 12(b) (6), to dismiss all of the plaintiffs' claims. For the reasons hereinafter stated, those motions are granted with respect to the Counts alleging gross negligence, private nuisance, Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 3 of 29 PageID #: 229 intentional or negligent infliction of emotional harm, and violation of HWMA, but the motions are denied with respect to the Counts alleging negligence, strict liability, and public nuisance.
The motions to dismiss also are denied with respect to the punitive damages claims.
Backsround Facts
All four complaints allege essentially the same facts and, with one exception, make identical claims.' The facts alleged are as follows.
At some unspecified time before it was acquired by Southern
Union, FRGC operated an electric power-generating facility near the property now owned by the plaintiffs. The facility produced "coal gasification waste material," some of which allegedly was deposited as fill on or near the plaintiffs' property, apparently by contractors. The Corvello complaint states that the fill was deposited "prior to the construction of homes" in the area.
Corvello Compl. 7 17.
In August 2002, the Town of Tiverton was installing a sewer interceptor line in an area near the plaintiffs' property. Some of the excavated soil was an unusual blue color and emitted a distinctive odor characteristic of polyaromatic hydrocarbons.
A Rhode Island Department of Environmental Management
Only the plaintiffs in Corvello assert claims for infliction of emotional distress and for violation of HWMA. Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 4 of 29 PageID #: 230
("RIDEM") investigator determined that the blue color indicated that the soil was "coal gasification waste material" that contained toxic and hazardous substances and that some of the substances, notably polyaromatic hydrocarbons ( "PAH' sf') , cyanide and naphthalene, exceeded RIDEM'S established exposure criteria.
Further investigation disclosed the presence of these substances in the soil under the streets in the neighborhood and on some of the surrounding property.
RIDEM issued a "letter of responsibilityM to the defendants and the Town of Tiverton placed an emergency moratorium on excavation in an area that encompasses the plaintiffs' properties.
The moratorium precludes the issuance of building permits for any construction requiring excavation.
The plaintiffs in Corvello, Burns, and Biselow brought actions in the Rhode Island Superior Court which were removed to this
Court. The plaintiffs in Reis brought an action in the United
States District Court for the District of Massachusetts which was transferred to this Court. All of the complaints contain claims for negligence, strict liability, private nuisance and public nuisance. The Corvello and
Reis complaints also include claims for gross negligence, and the
Corvello complaint includes claims for infliction of emotional Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 5 of 29 PageID #: 231
distress, and violation of the HWMA, R.I. Gen. Laws 5 23-19.1-22.2
Standard of Review
In ruling on a motion to dismiss made pursuant to Rule
12(b)(6), the Court takes the well-pleaded allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiffs. Barrios-Velazauez v. Asociacion De Ernpleados Del
Estado Libre Asociado De Puerto Rico, 84 F.3d 487, 489-90 (1st Cir. 1996) . The motion may be granted only if it appears that the plaintiffs cannot prove any set of facts entitling them to relief.
Rockwell v. Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir. 1994).
However, the Court need not credit "bald assertions,,, subjective characterizations or "unsubstantiated conclusions." Rodi v.
Southern New Ens. Sch. Of Law, 389 F.3d 5, 10 (1st Cir. 2004). Nor may a plaintiff rest on allegations of a "general scenario which could be dominated by unpleaded facts." Dewey v. Univ. of New
Hampshire, 694 F.2d 1, 3 (1st Cir. 1982).
Analysis
I. Neslisenee
A. Breach of Dutv
The defendants argue that the negligence claims should be dismissed because the complaints do not allege any facts that would establish the violation of a duty owed by the defendants to the
The Burns complaint originally included a claim for Trespass that was voluntarily dismissed at the December 1, 2005 hearing on the motion to dismiss. Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 6 of 29 PageID #: 232 plaintiffs. More specifically, the defendants argue that they have not breached any duty owed to the plaintiffs because the coal gasification waste material was deposited long before the area in question was developed and, therefore, any alleged harm to the plaintiffs was too remote and speculative to be reasonably foreseeable.
The defendants rely on Hvdro Manufacturins, Inc. v. Kavser-
Roth Corp., 640 A.2d 950, 955 (R.I. 1994) and Wilson Auto Enters..
Inc. v. Mobil Oil Corp., 778 F. Supp. 101, 104 (D.R.I. 1991), but that reliance is misplaced. Both cases involved negligence claims against prior owners of the plaintiffs' property for activities that allegedly contaminated the soil and/or ground water. In each case, the Court rejected the claim on the ground that the possibility that a property owner1s use of his property might cause injury to future owners was too remote to impose a duty to future purchasers to refrain from such use.
In Wilson, the contamination allegedly resulted from the defendant's operation of a gas station on the property. The Court found that allegation insufficient to state a claim because the plaintiffs had an opportunity to inspect the property before purchasing it and, under the doctrine of caveat emptor, they had a responsibility to do so, especially since the property's use as a gas station made the possibility of contamination fairly predictable. Wilson, 778 F. Supp. at 105. However, Judge Lagueux Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 7 of 29 PageID #: 233
suggested that the result might have been different if a claim of contamination had been asserted by owners of nearby property because, unlike the plaintiff in that case, "Mobil's neighbors in
Foster may have had no choice in becoming victims of Mobilfs alleged chemical leaks." -Id.
In Hydro Manufacturinq, the purchaser of property on which the defendant previously had operated a textile plant sought to recover for contamination allegedly caused by the defendant's negligence in allowing hazardous materials to spill on the ground. The Court affirmed the entry of summary judgment in favor of the defendant holding that prior owners of property do not 'owe remote purchasers a duty to maintain the property and to refrain from any activity that may harm the propertyffbecause "the duty that sellers owe to subsequent purchasers is established primarily through contracts between the parties who theoretically reach an arm's-length agreement on a sale price that reflects the true value of the landmN Hvdro Manufacturing, 640 A.2d at 955 (citations omitted).
The Hvdro Manufacturinq Court pointed out that a prospective buyer can obtain protection by inspecting the property, obtaining representations or warranties from the seller and seeking indemnity or a reduction in the sale price to reflect the land's actual economic value. a.at 955-56.
This case is distinguishable from Wilson and Hydro
Manufacturing because these plaintiffs are not subsequent Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 8 of 29 PageID #: 234 purchasers of FRGC1s property. Accordingly, these plaintiffs presumably, were not alerted to the possibility that waste generated by FRGC had contaminated their property; and, therefore, they would have had no reason to perform environmental tests before buying the property. Nor did these plaintiffs have any opportunity to bargain with or obtain representations and warranties from FRGC.
Rather, the plaintiffs are like the neighbors referred to in Wilson who had no choice about becoming victims of the alleged contamination. In short, the limited caveat emptor exception that precludes contamination claims by a landowner against a previous owner is not applicable in this case and does not relieve the defendants of their duty to refrain from conduct that contaminates or otherwise harms neighboring properties. See OrDonnel1 v. White, 50 A. 333
1 1901) (municipality held liable for negligently throwing earth and gravel on owner's property while filling in streets).
B. Violation of Section 23-19.1-22
In addition to their claim for an alleged violation of the
Rhode Island Hazardous Waste Management Act, R.I. Gen. Laws § 23-
19.1-22 (the "HWMA") , the plaintiffs cite that alleged violation in support of their negligence claim. Under Rhode Island law, violation of a statute is evidence of negligence. Wallace v. United States, 335 F. Supp. 2d 252, 264
{D.R.I. 2004) (citing Clements v. Tashioin, 168 A. 2d 472, 474 (R.I. Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 9 of 29 PageID #: 235
1961) and Sitco v. Jastrzebski, 27 A.2d 178, 179 (R.1. 1942)).
Consequently, a showing that the defendants caused coal gasification waste to be deposited on the plaintiffsf property in violation of the HWMA may be admissible as evidence of negligence if the statute was in effect at the time that the defendants acted. Since the complaints fail to state when the coal gasification wastes were deposited on the plaintiffsf property, this Court cannot say that the plaintiffs will be unable to show that the HWMA was in effect at that time.
11. Gross Neqliqence
With one very limited exception, Rhode Island does not distinguish between degrees of negligence and, therefore, does not recognize a separate cause of action for gross negligence. Labree v. Maior, 306 A.2d 808, 816 (R.I. 1973) ; Wilson, 778 F. Supp. at
104. The exception is set forth in the "good samaritanw statute which immunizes emergency medical technicians ("EMTs") from liability for conduct during the performance of their duties unless they are guilty of gross negligence or willful misconduct. See
R.I. Gen. Laws § 23-4.1-12.
In support of their gross negligence claims, the plaintiffs cite Contois v. West Warwick, 865 A.2d 1019 (R.I. 2004) and Leite
It is possible that actual liability for an alleged violation of the HWMA might be imposed retroactively, see Charter Intfl Oil Co. v. United States, 925 F. Supp. 104, 110 (D.R.I. 1996). Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 10 of 29 PageID #: 236
v. City of Providence, 463 F. Supp. 585, 591 DR.. l978), but
these cases do not support their claims. Contois dealt with a
negligence action against an EMT and addressed gross negligence
only in order to determine whether the EMT was entitled to immunity
under the Good Samaritan statute. Moreover, in Leite, the gross
negligence claim was asserted in connection with a Section 1983
claim under federal law, not a claim based on Rhode Island law.
Consequently, while the plaintiffs might be entitled to
recover on the theory that the defendants were negligent, they
cannot maintain a separate claim for gross negligence.
111. Strict Liability
A defendant who knowingly engages in abnormally dangerous
activity or causes an abnormally dangerous condition to exist, may
be held liable for any resulting harm to persons or property even
if the defendant exercised reasonable care. Restatement (Second)
of Torts 5 519(1) (1977). The Rhode Island Supreme Court has said that "whether a
defendant should be held strictly liable for ultra-hazardous or
abnormally dangerous activities is a question of law." Sslendorio
v. Bilray Demolition Co., Inc., 682 A.2d 461, 465 {R.I. 1996)
However, it also has stated that determining whether an activity is
ultra-hazardous or abnormally dangerous requires consideration of
4Splendorio overruled Rose v. Sacounv-Vacuum Corn., 54 R.1. 411; 173 A. 627 (1934) which declined to follow the doctrine of strict liability first expressed in Rvlands v. Fletcher. Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 11 of 29 PageID #: 237
a variety of factors set forth in the Restatement (Second) of Torts and that " [t]he weight apportioned to each [factor] should be
dependent upon the facts in each particular case ." Splendorio, 682
A.2d at 466. The factors to be considered are:
" (a) existence of high degree of risk of some harm to the person, land or chattels of others; " (b) likelihood that the harm that results from it will be great; "(c) inability to eliminate the risk by the exercise of reasonable care; " (d) extent to which the activity is not a matter of common usage; "(e) inappropriateness of the activity to the place where it is carried on; and "(f) extent to which its value to the community is outweighed by its dangerous attributes."
-Id. (quoting Restatement (Second) of Torts § 520 (1977)) . Generally, "[aln activity is not abnormally dangerous if the risks therefrom could be limited by the exercise of reasonable
care." Splendorio, 682 A.2d at 466 (quoting G.J. Leasing Co. v.
Union Elec. Co., 854 F. Supp. 539, 568 (S.D. 111. 19%)). The mere fact that an activity involves an ultra-hazardous or abnormally dangerous substance is not, by itself, sufficient to
trigger strict liability. As the Swlendorio Court stated, "if the
rule were otherwise, virtually any commercial activity involving
substances which are dangerous in the abstract automatically would
be deemed as abnormally dangerous. This result would be
intolerable." S~lendorio,682 A. 2d at 465-66 (quoting G.J. Leasinq
Co., 854 F. Supp. at 568). Accordingly, the ahnormal risk of harm
must arise from the manner in which the defendant dealt with a
dangerous substance. Swlendorio, 682 A. 2d at 466. Put another
11 Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 12 of 29 PageID #: 238
way, the substance must be used in a way that creates an unreasonable risk of harm.
In Splendorio, the Court upheld the entry of summary judgment in favor of a company hired to develop an abatement plan for any
asbestos found in buildings that were being demolished. The
plaintiffs claimed that asbestos in the debris removed from the
site by the demolition company contaminated their property and that
the defendant, as the architect of the plan, was strictly liable.
However, the Court found that, even though asbestos may be an abnormally dangerous substance, strict liability did not apply
because the task performed by the defendant was not inherently dangerous and its "value to the community . . . far outweighed its
dangerous attributes." -Id. at 4 66. In this case, although the determination as to whether the
defendantsf activities were ultra-hazardous or abnormally dangerous
ultimately may be a vestion of law, that determination cannot be
made until evidence is presented with respect to the facts upon
which the determination must be based. At this juncture, the
relevant facts are unknown. There is no evidence regarding such
matters as exactly what substances were deposited on or near the
plaintiffs1 property, what role the defendants may have played in
depositing them, exactly what dangers the substances pose, whether
that danger was recognizable at the time of disposition and whether
the danger could have been eliminated by the exercise of reasonable Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 13 of 29 PageID #: 239
care. Therefore, this Court cannot say that the plaintiffs will be
unable to prove any facts that may entitle them to relief on their
strict liability claims.
IV. The Nuisance Claim
A. Nuisance, in General
As so aptly stated by the late Professor Prosser, " [t]here is
perhaps no more impenetrable jungle in the entire law than that
which surrounds the word 'nuisance'" the application of which too
often has demonstrated a tendency "to seize upon a catchword as a
substitute for any analysis of a problem." W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 86, at 617 (5th ed. 1984)
[hereinafter "Presser"]. The lack of analysis and seeming
inconsistency in dealing with nuisance claims stems, partly, from
the historical development of nuisance doctrine; partly, f rorn a
failure to clearly define what constitutes a nuisance; and, partly,
from differences in describing the kinds of conduct required to support a nuisance claim. a. Much of the uncertainty is rooted
in the fact that the causes of action for both private and public nuisance developed on a case-by-case basis, along separate tracks
and based on different principles.
Historically, claims for private nuisance have been wnarrowly
restricted to the invasion of interests in the use or enjoyment of
land" caused by a defendant's use of his own property. u.at 618. By contrast, claims of public nuisance "extend[ed] to virtually any Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 14 of 29 PageID #: 240
form of annoyance or inconvenience interfering with common public rights." -Id. Moreover, until recently, an action for public nuisance, generally, could be maintained only by a duly authorized
representative of the public. See a. § 90, at 643-46. A great deal of the confusion surrounding present day nuisance
law arises from a failure to recognize that " [nluisance, either public or private, is a field, or rather two distinct fields, of
tort liability." Restatement (Second) of Torts S 822 cmt. a (1979). Fortunately, Rhode Island law generally recognizes the historical distinction between the two types of nuisance claims and
also defines "nuisance" as a substantial and unreasonable
interference with a plaintiff's protected interests. Hvdro
Manufacturins, Inc. v. Kavser-Roth Corn., 640 A.2d 950, 957 (R.I.
1994) .
Under Rhode Island law, "[a] cause of action for private
nuisance 'arises from the unreasonable use of one's property that
materially interferes with a neighbor1s physical comfort or the
neighbor's use of his real estatef" and "a public nuisance is an
'unreasonable interference with a right common to the general
public.'" Id. (quoting Weida v. Ferrv, 493 A.2d 824, 826 (R.I.
1985)). See Restatement (Second) of Torts §§ 821B, 821D (1979). As Prosser states, "[tlhe interference with the protected interest
must not only be substantial, but it must also be unreasonable."
Prosser § 87, at 629. Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 15 of 29 PageID #: 241
The conduct giving rise to a nuisance claim may consist of "an act; or a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the . . . invasion [of the protected interest] .,, Restatement (Second) of
Torts 5 824. Liability also may be predicated on the conduct of
servants, agents or independent contractors. a.cmt. c. The critical inquiry in deciding whether an interference with the protected rights of others is "unreasonable" is whether 'the gravity of the harm caused outweighs the utility of the conductfw
Prosser § 8824, at 630 (5th ed. 1984). See Restatement (Second) of
Torts § 826 (enumerating the factors to be considered in
determining reasonableness) . Put another way, a plaintiff must establish that "the harm or risk . . . is greater than he ought to be required to bear under the circumstances." Citizens for
Preservation of Waterman Lake v. Davis, 420 A.2d 53, 59 (R.I. 1980)
(citing Restatement (Second) of Torts, § 822 emt. g at 112).
B. Private Nuisance
The plaintiffs allege that the disposal of FRGC's coal
gasification waste on their property and on nearby properties has
created a private nuisance. The defendants argue that the
complaints fail to state a claim for private nuisance because they
do not allege that the nuisance resulted from activities conducted
on the defendants' property or that the plaintiffs' homes and the defendantsf facility are "neighboringrfproperties. Plaintiffs1 Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 16 of 29 PageID #: 242
Mem. at 12.
As already noted, in order to prevail on their private
nuisance claims, the plaintiffs must show that the interference
resulted from the def endantst unreasonable use of their own
property. Hvdro Manufacturinq, 640 A.2d at 957 (quoting Weida v.
Ferry, 492 A.2d 824, 826 (R.I. 1985)) ; accord Citizens for the
Preservati.on of Waterman Lake, 420 A.2d at 59. Here, the
complaints do not allege that the contamination was caused by
FRGC's use of its property. Rather, they allege that the
contamination resulted from transporting hazardous material from
FRGC's property and depositing it on or near the plaintiffs'
property. Consequently, although it seems clear that the alleged
interference with the plaintiffsf property interests is of a
magnitude that satisfies the requirement of substantial
interference, and while the plaintiffs may have viable claims
against the defendants under theories of negl5gence, intentional
tort and/or strict liability, they have failed to state claims for
private nuisance.
C. Public Nuisance
The plaintiffs allege that the disposal of FRGC's coal
gasification waste on their property and on nearby property also
has created a public nuisance that harms them. The defendants
argue that the complaints fail to state claims upon which relief
may be granted because the alleged harm relates only to private Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 17 of 29 PageID #: 243
properties belonging to the individual plaintiffs and not to any
"right common to the general public" as required by Hvdro
Manufacturinq. NE Gas Mem. Mot. Dismiss at 14-15.
In order to prevail on a public nuisance claim, a plaintiff
must establish that a defendant unreasonably interfered with a
"right common to the general public" and that the plaintiff
sustained "special damages" as a result of the interference. Rvdro
Electric Manufacturinq, 640 A.2d 950, 957-58 (citing Iafrate v.
Ramsden, 190 A.2d 473, 476 (R.I. 1963)); Clark v. Peckharn, 10 R.I.
A right "common to the general public" is a collective right
that is shared by everyone in the community. It differs from a
right that is possessed only by certain individual members of the
public. See Restatement (Second) of Torts 8213 cmt. g. Thus, a public nuisance has been described as something "that unreasonably interferes with the health, safety, peace, comfort or convenience
of the general community." Citizens for Preservation of Waterman
Lake, 420 A.2d at 59.
A public nuisance may consist of an "'aggregatian of private
injuries [that] becomes so great and extensive as to constitute a
public annoyance and inconvenience, and wrong against the
community.'" Sullivan v. Amer. Mfs. Co. of Massachusetts, 33 F.2d
690, 692 (4th Cir. 1929) (quoting Wesson v. Washburn Iron Co., 13
Allen 95, 90 Am. Dec. 181 (Mass. 1866)). However, the fact that a Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 18 of 29 PageID #: 244
condition interferes with the private rights of a substantial
number of individuals does not, by itself, make it a public nuisance. -See Iafrate, 190 A.2d at 476 (a plaintiff must demonstrate that 'the acts complained of interfered with any
interest of plaintiffs common to the general public.") (quoting
Prosser) . The distinction is illustrated by Presser's example of a polluted stream. The pollution would be a private nuisance if it
interferes only with the use and enjoyment of property belonging to
a number of riparian owners but it would be a public nuisance if it
kills all of the fish, thereby depriving the public of the right to
fish in the stream. W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 90, at 645 (5th ed. 1984).
An action for public nuisance may be maintained by a private
citizen who "suffers special damage, distinct from that common to
the public." Hydro Manufacturinq, at 957 (quoting Iafrate v.
Ramsden, 190 A.2d 473, 476 (1963)). Under Rhode Island law, a
private citizen also may bring an action "to abate the nuisance and
to perpetually enjoin the person or persons maintaining the
nuisance." R. I. Gen. Laws. S 10-1-1. In order to satisfy the "special damage" requirement, a
private plaintiff must show that he has "'suffered harm of a kind
different than that suffered by other members of the public
exercising the right common to the general public that was the
subj ec t of inter£erence . ' " Hvdro Manufacturinq, 640 A.2d at 958 Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 19 of 29 PageID #: 245
(quoting Restatement (Second) of Torts § 821C(1)). See Prosser §
90, at 646 (" [a] private individual has no action for the invasion
of the purely public right, unless his damage is in some way to be
distinguished from that sustained by other members of the general p~blic.'~).Consequently, it is not enough for a private plaintiff
to show that he has suffered "the same kind of harm or interference
but to a greater extent or degree" as other members of the public.
Restatement (Second) of Torts B 821C cmt. b (19793 . Rather, the harm shown must be separate and distinct from the harm suffered by
the general public. Hvdro Manufacturinq, 640 A.2d at 958.
"Special damages" may include personal injury to the
plaintiff , damage to the plaintifffs property om: substantial
interference with the use and enjoyment of the plaintiff's
property; but, in order to be cumpensable under a public nuisance
theory, the damages must have been caused by interference with the
public right. & Hvdro Manufacturinq, 640 A. 2d at 957-58; Prosser
§ 90, at 648. Thus, in Hydro Manufacturinq, the Court rejected a public nuisance claim by a landowner whose property was forfeited
under CERCLA as a result of contamination caused by a prior owner
that polluted the groundwater. The Court held that the landowner
could not maintain a public nuisance action against the prior owner
because the public right interfered with was "the right to pure
water" and the landowner "did not allege that it suffered special damages stemming from [the defendant's] interference with [the Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 20 of 29 PageID #: 246
plaintiff's] use and enjoyment of the ground water at the site or
of its right to pure water." a.at 958. The Court noted that the landowner's damages flowed fromthe forfeiture of its property and
"not in the exercise of a public right." -Id.
In this case, although the complaints do not specifically
allege that the coal gasification waste poses a threat to public
health or otherwise unreasonably interferes with a right common to
the general public; it does allege that the waste contains a number
of highly toxic substances and that the presence of those
substances has prompted the Town to impose a building moratorium in
the area. Consequently, this Court cannot say that the plaintiffs
will be unable to prove any facts that would entitle them to relief
on their public nuisance claims.
V. The Emotional Distress Claim The emotional distress claim set forth in the Cowello
complaint does not state whether it is a claim for intentional
infliction of emotional distress or negligent infliction of
emotional distress. That omission is significant because the
elements that must be proven in order to prevail on a claim of intentional infliction of emotional distress differ from the
elements that must be proven to prevail on a claim for negligent infliction of emotional distress.
In order to prevail on an intentional infliction claim, a
plaintiff must prove, among other things, that, (1) the defendant Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 21 of 29 PageID #: 247
acted with intent to cause emotional distress or with reckless
disregard as to whether emotional distress would result and (2) the
defendant s conduct was "so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community." Swerdlick v. Koch, 721 A.2d 849, 863 (R.I. 1998)
(quoting Restatement (Second) of Torts § 46 cmt. d, at 73) ) . By
contrast, a neslisent infliction claim only requires proof that the
defendant acted negligently. Id. at 864.
A second distinction is that, in order to prevail on a claim
for negligent infliction, a plaintiff must show that (1) he
witnessed the incident allegedly causing the distress, and (2) he
was threatened with injury by being "in the zone of physical
danger" or he is "closely related" to a person who was seriously injured. a. This requirement reflects courtsr reluctance "to
impose potentially unlimited and undeserved liability upon a
defendant who is guilty of unintentional conduct.'" Marchetti v.
Parsons, 638 A.2d 1047, 1050 (R.I. 1394) (quoting Reillv v. U.S.,
547 A.2d 894, 897-98 (R.I. 1988) ) .
Under either theory, a plaintiff also must establish (1) a
causal connection between the defendant's conduct and the emotional
distress and (2) physical symptoms manifesting the distress which
must be linked to the defendant's conduct by medical evidence.
Marchetti v. Parsons, 638 A.2d at 1052; see Jalow v. The Friendly Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 22 of 29 PageID #: 248
Home, Inc., 828 A.2d 698, 710 (R.I. 2003). At oral argument, counsel stated that the complaint was intended to assert claims for both intentional and negligent infliction of emotional distress. However, in ruling on a motion
to dismiss, this Court must base its decision on the complaint as
written and not on what counsel , later, may say was intended. Applying this test, it seems clear that the Corvello complaint asserts a claim for intentional infliction of emotional distress.
It describes the defendants1 acts and omissions as "outrageous" and
"so extreme in degree as to go beyond all possible bounds of
decency." Corvello Compl. 57. It also alleges that the
defendant "knew or was reckless in not knowing that its acts and
omissions would inflict emotional distress on the plaintiffs." Id. 7 58. The allegations address elements that are unique to a cause of action for intentional infliction. Furthermore, the Corvello
complaint does not allege that the defendants were negligent or
that the plaintiffs are within a zone of physical danger, both of
which are elements of a claim for negligent infliction. The defendants argue that the complaint fails to state a claim
for intentional infliction because the fact that the plaintiffs did
not own or occupy their properties when the coal gasification waste
allegedly was deposited precludes a finding that the defendants
acted with the requisite intent to cause emotional distress to the plaintiffs. This Court finds that argument persuasive. Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 23 of 29 PageID #: 249
It is well established that intent to cause emotional distress
cannot exist in the abstract and, like any other intentional tort,
it requires a victim who is the object of the defendant's
intentional act. Lewis v. General Elec. Co., 37 F. Supp. 2d 55, 60
(D. Mass. 1999); Collins v. Olin Corw., 418 F. Supp. 2d 34, 56 (D.
Conn. 2006). In Lewis, the Court dismissed an intentional
infliction of emotional distress claim brought by homeowners
against a corporation that allegedly dumped contaminated soil near their properties because there was no indication that the
defendants' actions were directed at the plaintiffs. Lewis, 37 F.
Supp. 2d at 60. In doing so, the Court observed that "[tlhe focus of cases 'dealing with intentional infliction of emotional distress
has been on the emotional distress of a person against whom the
extreme and outrageous conduct was directed.'") (quoting Nancv P.
v. D'Amato, 517 N.E.2d 824, 827 (Mass. 1988) ) . Similarly, in
Collins, the Court dismissed a claim of intentional infliction of
emotional distress brought by neighboring landowners against a
municipality for allowing a wetland to be filled with allegedly
contaminated soil because "[tlhe plaintiffs were not living at the
landfill sites at the time of the dumping; indeed, the area was not
developed and their residences were not constructed until after the
dumping on that property was long completed." Collins, 418 F.
Supp. 2d at 56. Accordingly, the Collins Court stated that, "it
cannot be found as a matter of law that [the municipality] knew or Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 24 of 29 PageID #: 250
should have known that its actions or omissions would inflict emotional distress on the plaintiffs." -Id.
In this case, since the complaint indicates that the coal
gasification waste was deposited before the Corvello plaintiffs
acquired their property, the defendants' actions could not have
been intended to cause emotional distress to the Corvello
plaintiffs; and, therefore, the plaintiffs cannot prevail on their
intentional infliction claim.
The absence of any allegation that the plaintiffs have
physical symptoms resulting from their emotional distress also is
fatal to their intentional infliction claim. As already noted,
physical manifestations are a sine ma non to recovery for
intentional infliction of emotional distress and it would be a
waste of time, effort and resources to require ,the defendants to
ferret out, via discovery, the absence of facts that have not been
in order to move for summary judgment.
Of course, the plaintiffs' inability to prove claims for the
torts of intentional or negligent infliction of emotional distress
does not necessarily mean that they are precluded from recovering
for any emotional distress that they may have suffered. If the
plaintiffs succeed on any of their other surviving claims and can
demonstrate some other type of injury, they may be entitled to
recover consequential damages for emotional distress suffered in
connection with that injury. Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 25 of 29 PageID #: 251
VI. The Statutory Violation Claim
The Corvello complaint asserts a claim for violation of the
HWMA based on allegations that the coal gasification waste was
disposed of "in a manner or location not authorized by R.I. Gen.
Laws 5 23-19.1-22 (1956)". Corvello Compl. 7 61. The defendants
argue that this claim should be dismissed because the "statute does
not create a private right of action." NE Gas Mern. Mot. Dismiss at
The HWMA regulates the manner in which hazardous wastes are
transported and disposed of. Section 23-19.1-22(c) of the Act
provides :
The State, by and through the Department of Environmental Management, is a trustee of the air, water, fish, and wildlife of the State. An action brought pursuant to the provisions of this chapter with respect to environmental damage may be brought bv the attomev seneral or the director of the department of environmentalmanasement in the name of the state as trustee for those natural resources.
Section 23-19.1-22 (c) (emphasis added) . Nothing in the HWMA authorizes a private individual to sue for
a violation of the statute. Nor do any of the statutory remedies
appear to have any application to private litigants. The statute
provides for civil penalties (5 23-19.1-17) ; criminal penalties (5
23-19.1-18); payment of restoration costs (5 23-19.1-18) and treble
damages (5 23-19.1-22) . However, since the "damages" in 5 23-19.1-
22 appear to refer to damages to the environment and natural
resources and, since § 23-19.1-23 creates an environmental response Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 26 of 29 PageID #: 252
fund consisting of "any sums as the State may appropriate or sums
recovered by any action brought under the authority of this
chapter," it seems clear that the General Assembly contemplated
that violations would be prosecuted by the State and not by private
parties .5 Indeed, that is how the Rhode Island Supreme Court has
construed the HWMA. In an unpublished order, that Court stated:
We are of the opinion that as matter of law the statute does not provide a private right of action for violation of this act, but only for proceedings to be brought in the name of the Director of the Department of Environmental Management and/or by the Attorney General on behalf of the state.
Stoutenbursh v. Dierauf, No. 90-194-Appeal (R.I. Dec. 13,
1990) .
Moreover, in Hotel Associates, LLC v. HMS Associates Ltd.
P'ship, 2004 W.L. 422812 (R.I. Super. Feb. 20, 2004) the Rhode
Island Superior Court, later, reached the same conclusion. In that
case, summary judgment was entered against a landowner who sued,
under the HWMA, for damages resulting from contamination of its
property allegedly caused by fuel oil left in underground storage
tanks by the defendant because the Court found that the HWMA did
not confer a private right of action. The Court said:
[Ilt is clear from the language of the HWMA, in its entirety, that the legislature left the HWMA1s liability determination and enforcement in the hands of the RIDEM
During oral argument, the Court inquired whether counsel wished to have the Court certify this question to the Rhode Island Supreme Court but counsel for both sides declined that invitation. Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 27 of 29 PageID #: 253
and the Attorney General. This Court finds that language and purpose of the HWMA convey that the legislature did not intend to create a private right of action. -Id. at 10.
The plaintiffs rely on Gryquc v. Bendick, 510 A.2d 937 (R.I.
1986) but that case does not support their contention that a
private right of action exists under the HWMA. In Gwquc, the
Court dismissed a suit brought by neighbors under the HWMA against
a hazardous waste treatment facility on the ground that the
plaintiffs1 property was not within the radius entitling them to
contest the issuance of a permit. The plaintiffs in this case
argue that the fact that the case was not dismissed on the ground
that the plaintiffs did not have a private cause of action
indicates that a private cause of action exists. That argument is
too attenuated to be persuasive, especially in light of the
subsequent decisions in Stoutenbursh and Hotel ~ssociates.
VII. Punitive Darnases
The defendants argue that any claims for punitive damages
should be dismissed because the complaints fail to allege that FRGC
acted with malice or wickedness. ME Gas Mem. Mot. Dismiss Corvello
Compl. at 19.
It is true that, under Rhode Island law, the standard for
awarding punitive damages is a very strict one. Thus, a "party
seeking punitive damages has the burden of producing 'evidence of
such willfulness, recklessness or wickedness, on the part of the Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 28 of 29 PageID #: 254
party at fault, as amount [s] to criminality, which for the good of
society and warning to the individual, ought to be punished.'"
Palmisano v. Toth, 624 A.2d 314, 318 (R.I. 1993) (quoting Sherman
v. McDermott, 329 A.2d 195, 196 (R.I. 1974) ) . However, while it
may be advisable to use those terms where punitive damages are
being claimed, there is nothing magical about the words themselves.
All that is required is that the allegations in a pleading, if
proven, be sufficient to support a finding of malice, recklessness
or wickedness.
Here, the complaints satisfy that requirement. They allege
that the "[cloal gasification waste material contains lead,
arsenic, cyanide and other hazardous substances" (Corvello Compl.
fi 21); that the defendants "knew or should have known that the hazardous substances . . . would cause ham" (Corvello Cornpl. 7
39); and that the defendants "knew or should have known that there
was a high degree of risk associated with the handling, disposal
and/or release of the hazardous substancesir (Corvello Compl. 7 44).
Based on those allegations, it is possible that the plaintiffs
might be able to prove the degree of culpability necessary to
support an award of punitive damages.
It is true, as the defendants suggest, that whether evidence
is sufficient to support an award of punitive damages is a question
of law for the Court. Palmisano, 624 A.2d at 318 (citing Davet v.
Maccarone, 973 F.2d 22, 27 (1st Cir. 1992)) (court makes "initial Case 1:05-cv-00274-S-LDA Document 33 Filed 11/03/06 Page 29 of 29 PageID #: 255
determination whether an award of punitive damages is appropriate
in a given case."). However, in most cases, the Court cannot make
that determination simply by reading the complaint but, instead,
must wait until the evidence is presented. This, clearly, is one
of those cases.
Conclusion
For all of the foregoing reasons, it is hereby ORDERED that
the defendants' motion to dismiss is DENIED with respect to the
counts contained in the plaintiffs' complaint that assert claims
for negligence, strict liability and public nuisance and with
respect to the requests for punitive damages. The motion to
dismiss is GRANTED with respect to the counts asserting claims for gross negligence, private nuisance, infliction emotional
distress, and violation of the Hazardous Waste Management Act, R.I.
Gen. Laws S23-19.1-22.
IT IS SO ORDERED:
Uc5L-- Ernest C. Torres Chief Judge Date: 3 , 2006